Last month, President Obama announced that Khalid Sheik
Mohammed would be transferred to New York, where he would stand trial
in U.S. district court for his purported role as principal architect of
the 9/11 attacks. At the same time, Obama announced that other
terrorist suspects would continue to be tried for terrorism in the
Pentagon’s military-commissions system, which was established after
9/11.

Which judicial system is chosen—the federal courts or military
commissions system—has important consequences for accused terrorists.
What all too many Americans fail to realize, however, is the enormity
of the impact that this dual system of justice has had on the country’s
constitutional order. The precedents created here will extend far
beyond the war on terror.

Suppose drug-war violence in Mexico spills over into the United
States. Gangs begin kidnapping, torturing, and murdering federal
law-enforcement agents and judges. Federal buildings are bombed.
Gang-war gun battles break out on the streets, resulting in the deaths
of bystanders.

The violence induces the U.S. government to re-declare a war on
drugs. The president orders the military to undertake at home the same
type of interdiction operations it has been taking in foreign countries
for decades. The Pentagon immediately sends several thousand
battle-tested troops to the southern border to wage the struggle.

When critics complain that the Posse Comitatus Act prohibits the
military from engaging in domestic law enforcement, the president
responds that this is war, not criminal justice, and that in this war,
as in the war on terrorism, the entire world, including the United
States, is the battlefield. As commander in chief, the president says,
he wields the power to send the military onto the battlefield to
capture or kill the enemy wherever he may be found.

And as part of the war, the president and the Pentagon announce that
there will now be two alternative judicial systems for handling drug
offenders.

One system will be the traditional one established by the
Constitution, the one involving federal grand-jury indictments, trials
before federal judges, the presumption of innocence, protection from
self-incrimination, suppression of illegally obtained evidence, freedom
from cruel and unusual punishments, effective assistance of counsel, a
speedy and public trial, the right to confront witnesses, and trial by
jury.

The other judicial system will be established and operated by the
Pentagon, at its prison camp in Cuba. Its procedures will be entirely
different from those in the U.S. federal courts. Drug-war combatants
shunted into this system will be presumed guilty, subject to torture
and abuse, and denied the procedural rights and guarantees provided in
the Bill of Rights.

Deciding which system of justice will be applied to each suspected
drug offender will rest entirely in the hands of federal officials,
especially the military. They will wield full discretionary authority
to make the call. As a political and practical matter, the policy will
be to send most, but not all, American suspects into the federal court
system. Foreign citizens, on the other hand, will largely be subjected
to the Pentagon’s system.

While many long-time drug-war proponents would undoubtedly hail such
a change as a positive development in their decades-long hope of
finally winning the war on drugs, most Americans would surely feel a
sense of unease about such an announcement. Many of them would
recognize that such a change would fundamentally alter America’s
criminal-justice system.

Let’s keep in mind that the Bill of Rights doesn’t really give
anyone any rights. Instead, it does two primary things: it prohibits
the federal government from infringing upon fundamental and inherent
rights of the people, and it forces federal officials to accord people
charged with crimes important procedural rights and guarantees that
have been carved out in the struggle between liberty and tyranny, a
struggle that stretches back centuries into British history.

Why did the American people demand passage of the Bill of Rights?
Because they considered the federal government, which the Constitution
had brought into existence, to be the primary threat to their freedom
and well-being. Americans were convinced that the federal government
would end up doing the bad things that governments historically had
done to people, such as confiscating weapons to ensure submissiveness
to the government and rounding up people for criticizing the government
and torturing them.